Bone v. State , 102 Ga. 387 ( 1897 )

Little, J.

The evidence in the case was sufficient to support the finding of the jury that the defendants were guilty of the crime charged in the indictment, and there was no error-in overruling the motion for a new trial on the general grounds set out in the original motion. By the amended motion’exceptions are taken to several parts of the charge given.to the jury by the presiding judge, which we will consider seriatim. The third, fourth, fifth, sixth, seventh and eighth grounds of the motion are not certified by the judge, and therefore can not be considered by this court. The first and second grounds-being the general grounds which, as said above, were properly overruled, we are only to consider the errors alleged to have-been committed by the ninth, tenth, eleventh, twelfth and thirteenth grounds of the motion, and do so in the order indicated by the headnotes to this decision.

1. Error is assigned, in that the court charged the jury as. follows: “But if on the other hand you are satisfied of their guilt to a reasonable and moral certainty, then it would be your duty to find them guilty.” This charge undoubtedly states a correct principle of law, unless it qualifies another rule for the ascertainment of guilt—that relating to the doctrine of reasonable doubt as to the guilt of the defendants. To ascertain what, if any, qualification was made of the rule on reasonable doubt, reference should be had to that portion of the charge in which the language given is used, and also to the part in which the law as to reasonable doubt was given. In the opening of this charge, after stating the issue made by the bill of indictment and the plea and defining the offense with which the defendants were charged, the presiding judge directed the jury in these words: “If you believe from the evidence in this case that these defendants themselves, or acting and participating with others, did in this county, within four years,” etc., giving the acts necessary to constitute the offense, then adding: “If you believe these propositions and believe them beyond a reasonable doubt, then it would be your duty to find these two defendants on trial before you guilty. If you do not believe them, or have a reasonable doubt of them, it would be your duty to find the defendants not guilty.” So that, in the outset of his instructions, the judge told the jury that the defendants could not be found guilty unless their guilt was established beyond a reasonable doubt. In this part of the charge there can be no question that this cardinal rule in criminal cases was impressed on the minds of the jurors. The paragraph of the charge in which the language excepted to in the motion is contained is as follows: “I have charged you that what you believe in this case against the defendants you must believe beyond a reasonable doubt. That means what it says. It must be a reasonable doubt as opposed to one that is unreasonable. It is such a doubt as you can give a reason for, and based upon reason. It is not a mere guess or a vague conjecture that possibly the defendants may not be guilty; but it is such a doubt as leaves your mind in an uncertain condition, where you are unable to say with reasonable and moral certainty that the defendants are guilty. If your minds should be in that condition—wavering, uncertain, where you are not satisfied to a moral certainty that the .defendants are guilty, then you have the reasonable doubt that the law contemplates, and you should find them not guilty. But if on the other hand you are satisfied of their guilt to a reasonable and moral certainty, then it would be your duty to find them guilty.” A fair analysis of this charge would make it read thus: You can not convict the defendants unless you believe beyond a reasonable doubt that they are guilty; a reasonable doubt is such a doubt as you can give a reason for; it must be based upon reason; it is not a guess or a vague conjecture; it is such a doubt as leaves your mind in an uncertain condition when you can not say with reasonable and moral certainty that the defendants are guilty. The words of the charge give the defendants all the benefit of any reasonable doubt as to their guilt, and fix the reasonable and moral certainty necessary to convict as a state of mind reached in the absence of a reasonable doubt. One thing is quite apparent from the words of the charge: that is, that the jury would not be authorized to convict if they had a reasonable doubt of guilt, nor unless they were morally and reasonably certain of such guilt. It is difficult to conceive how the mind of a juror may reach a conclusion as to a fact to the point of moral certainty, and yet be rendered uncertain by the existence of a doubt of that fact which is reasonable. Absolute certainty of any fact is not to be attained in the trial of a case. Moral and reasonable certainty is all that can be expected. Penal Code, § 986. Mental conclusion that a fact exists can rest only on the evidence which produces absolute certainty, or on that which forces the mind to act in accordance with it; the latter is moral certainty. 3 Mont. 165. As the former is not attainable and therefore not necessary in determining the guilt of a person charged with a crime, the latter is sufficient. When the mind reaches a state of absolute certainty, there can of course exist no doubt of the fact so established. When moral certainty of the truth of a fact exists, that state of mind is not incompatible with doubt, nor is it required to authorize a conviction that the minds of the jury shall be absolutely free of doubt, but a reasonable doubt of his guilt shall acquit the defendant; and moral and reasonable certainty can not exist when there is a reasonable doubt of guilt. “Proof beyond a reasonable doubt is not beyond all possible or imaginary doubt, but such proof as precludes every reasonable hypothesis except that which it tends to support. It is proof to a moral certainty, as distinguished from an absolute certainty. As applied to a judicial trial for crime, the two phrases are synonymous and equivalent; each has been used by eminent judges to explain the other, and each signifies such proof as satisfies the judgment and consciences of the jury, as reasonable men and applying their reason to the evidence before them, that the crime charged has heen committed by the defendant, and so satisfies them as to leave no other reasonable conclusion possible.” 15 Am. & Eng. Ene. L. 715, citing 115 Mass. 1. In Commonwealth v. Welesten, 5 Cush. 295, Chief Justice Shaw instructed the jury that the evidence “must establish the fact to a reasonable and moral certainty, a certainty that convinces and directs the understanding and satisfies the reason and judgment of those who are bound to act conscientiously upon it. This we take to be proof beyond a reasonable doubt.” The term “moral certainty ” is equivalent to the words “ beyond a reasonable doubt.” 47 Cal. 96; 18 Iowa, 435; 52 Ala. 411; 6 Nev. 340; 28 Texas App. 114; 48 Ohio St. 371. And such seems to have been heretofore the understanding of this court. Heard v. The State, 70 Ga. 597; Giles v. The State, 6 Ga. 284, note 6; see also Jesse v. The State, 20 Ga. 167. We think that we have shown that moral certainty is reached only when the fact is established beyond a reasonable doubt, and, as the judge charged that the defendants could not be found guilty until the evidence satisfied the jury of their guilt beyond a reasonable doubt, that there was no error in further charging that they must be. satisfied of their guilt to a reasonable and moral certainty. It may be well to observe here, that the courts have frequently been called on to construe the language of judges used in instructions given to juries in the trial of criminal cases on the subject of “ reasonable doubts.” Mr. Bishop in his new work on Criminal Procedure (vol. 1, §1094, par. 4) says: “Most judges deem the expression ‘to a moral certainty’ to be equivalent to ‘beyond a reasonable doubt.’ Therefore properly used in explanation of the latter, and' on the whole, such ‘defining,’ if that is the word for it, has the support of our American authorities; but practically it will darken more minds of the classes from whom our jurors are mainly drawn, than it will enlighten. To try to give a specific meaning to the word ‘reasonable,’ when applied to reasonable doubts, is, in the vivid words of Sir Fitz-James Stephen, ‘trying to count what is not number and to measure what is not space.’ ” General View of Criminal Law, p. 262; see also Miles v. United States, 103 U. S. 304.

2. Error is assigned on the following charge of the court: “When the State offers evidence and makes out a prima facie case (in law) of guilt against the defendants, and the defense of alibi is relied on, then the burden of proof is on the defendants to show you, by the preponderance of the evidence offered, that at the time and place in question it was impossible for the defendants to have been there.” Our Penal Code, § 992, on the subject of alibi as a defense, declares that the range of the evidence in respect to time and place must be such as reasonably to exclude the possibility of presence. The onus is on the accused to verify the alleged alibi, not beyond reasonable doubt, but to the reasonable satisfaction of the jury. See Georgia cases cited under first note to Penal Code, § 992. The charge of the court varied to some extent the language approved in the above cases, as to the amount of proof required to establish the alibi. There is no question as to the correctness of the charge as to where the burden rested; it was with the defendants. The law relating to this subject has been formulated and declared by Chief Justice Bleckley in the case of Harrison v. The State, 83 Ga. 129, which has been cited with approval in later cases ruled by ‘this court. In that case he says: “ Touching alibi, the rule in •Georgia as established by authority consists of two branches. .The first is, that to overcome proof of guilt strong enough to exclude all reasonable doubt, the onus is on the accused to verify his alleged alibi, not beyond reasonable doubt, but to the reasonable satisfaction of the jury. The second is, that, nevertheless, any evidence whatever of alibi is to be considered on the general case with the rest of the testimony, and if a reasonable doubt be raised by the evidence as a whole, the doubt must be given in favor of innocence.” Thus it will be seen that the onus to establish the alibi is on the accused; that this is not to be established beyond a reasonable doubt, but to the reasonable satisfaction of the jury. .The court in this case charged that the burden was on the accused to show their absence by a preponderance of the testimony. The preponderance of the testimony might or might not show the facts of the alleged alibi to the reasonable satisfaction of the jury. Less than a preponderance might do so; more might not. We therefore think that the rule quoted above from Harrison v. The State is the proper one: that is, the facts of the alibi must be established to the reasonable satisfaction of the jury. For myself, I think it would be treading upon dangerous ground to carry the law beyond the principle there laid down. If I were not bound by the previous rulings of this court, I would not be prepared to go to the extent of the rule there laid down. An alibi is as much a traverse of the crime charged as any other defense, and proof tending to establish it, though not clear, may, with other facts of the case, raise a reasonable doubt of the guilt of the accused. 1 Am. & Eng. Ene. L. 455; 2 Thomp. Trials, § 2436. And following the primary rule for determining guilt, that is, that no conviction can be had unless the evidence establishes the guilt beyond a reasonable doubt, it would be logical, I think, that the facts of an alibi should come into the case like any other matters of defense, to be considered the same way and affect the mind of the jury only as they believe the truth to be. Being a part of the evidence, these facts should be considered with the other evidence in the case, and after due consideration of the evidence as a whole, the defendant should have the benefit of all reasonable doubt as to his guilt. However this may be, the law of this State is settled as above set out, and I follow as it is written. In the case of Harrison v. The State, to which reference has been made, the judge charged the jury that the evidence sustaining the alibi should outweigh or preponderate over the evidence for the State,—practically the same charge as here. While admitting the objection to it to be grave, this court held, that by construing the charge all together, the objection was successfully met. Subsequent parts of the charge instructed .the jury that they could not find the defendant guilty unless they believed from the evidence that' he was so beyond a reasonable doubt. We cite that case as authority for the ruling here. Immediately following the part of the charge excepted to, the court charged the jury to consider all the evidence touching the alibi and all other facts of the case in reference to determining whether the evidence was strong enough to convince them of the defendant’s guilt beyond a reasonable doubt; then followed a correct charge of the law as to the effect of reasonable doubts. Taking the whole paragraph of the charge as given in which occurs the reference' to the evidence necessary to sustain the alibi, we think the objection made was cured by that part which followed; and we will not, therefore, disturb the verdict on that ground.

3. The two defendants, with one Christie, were jointly indicted for the offense of robbery. When the case was called, Christie elected to sever, and the defendants were put on trial. Christie was a witness for defendants; and in rebuttal of evidence submitted by the State tending to show that the robbery charged was the joint act of defendants and Christie, the latter' testified: “I don’t know the defendants personally, but have heard of them—seen them since they have been in jail; by personally, I mean going with them and dealing with them and being in their company, and such as that.” To impeach the witness, evidence of Looney was admitted, to the effect that Christie had previously stated to him that he, Christie, Lem Bone, one of the defendants, and others broke into the store of one Morris -on January 1st, previously to the time of the trial, and robbed it of certain goods. In reference to this impeaching testimony, the court charged that it was “admitted solely for the purpose of impeaching the witness and not as affecting' the guilt of these defendants, other than it may affect what you believe to be the truth of what any witness may have testified.” We think that the caution and instruction given to the jury by this charge under the circumstances was altogether proper. The charge was intended to and did restrict the effect of the evidence admitted to the credit of the witness Christie, and prevented the consideration by the jury of hi s admission that he-was in company with one of the defendants engaged in another and distinct robbery, as having anything to do with the guilt of the defendants in the case on trial. The objection to the charge-was not a good one.

4. Several of the grounds of the motion were not certified to by the judge. Those that were, we have considered above. The evidence was sufficient to support the verdict, and there was no error in refusing the new trial.

Jibdgment affirmed.

Fish and Cobb, JJ., dissent. Atkinson,. J., absent. The other Justices concur.